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As filed with the Securities and Exchange Commission on January 14, 1998
Registration No. 333-________________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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N2K Inc.
(Exact name of registrant as specified in its charter)
N2K Inc.
55 Broad Street
26th Floor
Delaware New York, NY 10004 06-1455771
(State or other (Address of Principal Executive (I.R.S. Employer
jurisdiction of Offices) (Zipcode) Identification No.)
incorporation or
organization)
1997 Directors' Stock Option Plan
(Full Title of the Plan)
Jonathan V. Diamond
Vice Chairman
N2K Inc.
55 Broad Street, 26th Floor
New York, New York 10004
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 212-378-5555
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Frank E. Morgan II, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
(212) 259-8000
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE(1) PRICE(1)
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share 25,000 Shares (2) $19(3) $475,000 $140.13
Common Stock, par value
$.001 per share 475,000 Shares (4) $17(5) $8,075,000 $2,382.13
------------------
Total 500,000 Shares $8,550,000 $2,522.26(6)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended.
(2) Represents the maximum number of shares being registered that may be
purchased upon exercise of stock options currently outstanding under the
Registrant's 1997 Directors' Stock Option Plan.
(3) Based on the weighted average exercise price of currently outstanding
options.
(4) Represents the maximum number of shares being registered that may be
purchased upon exercise of stock options that may be granted in the future
under the Registrant's 1997 Directors' Stock Option Plan.
(5) Based on the average of the high and low prices of Registrant's Common
Stock on the NASDAQ National Market ("NASDAQ") on January 8, 1998.
(6) Total filing fee being paid.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required pursuant to the instructions of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required pursuant to the instructions of Form S-8.
I-2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Registrant's prospectus, filed pursuant to Rule 424(b), dated October 17,
1997, is incorporated herein by reference. In addition, all documents filed or
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the 1934 Act, prior to the termination of this Offering, are deemed
incorporated by reference into this prospectus.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that a director or
officer of the Company shall not be personally liable to it or its stockholders
for monetary damages to the fullest extent permitted by the Delaware General
Corporation Law ("GCL"). Section 102(b)(7) of the Delaware GCL currently
provides that a director's or officer's liability for breach of fiduciary duty
to a corporation may be eliminated except for liability (i) for any breach of
the director's or officer's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware GCL, for unlawful dividends or unlawful stock repurchases or
redemptions, and (iv) for any transaction from which the director or officer
derives an improper personal benefit. The Delaware GCL does afford persons who
serve on the board of directors of a Delaware corporation protection against
awards of monetary damages for negligence in the performance of their duties as
directors. The Delaware GCL does not affect the availability of equitable
remedies such as an injunction or rescission based upon a director's or
officer's breach of his duty of care. Any amendment to these provisions of the
Delaware GCL will automatically be incorporated by reference into the Company's
Certificate of Incorporation, without any vote on the part of its stockholders,
unless otherwise required.
Pursuant to the provisions of Section 145 of the Delaware GCL, every
Delaware corporation has the power to indemnify any person who was or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding. The
power to indemnify applies only if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
unlawful.
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The power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense or settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, believes that in light of all the
circumstances indemnification should apply. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
any by-laws, agreement, vote of stockholders or otherwise.
Indemnification Agreements. The Company and each of its directors and
executive officers has entered into indemnification agreements. The
indemnification agreements provide that the Company will indemnify the directors
and executive officers against certain liabilities (including settlements) and
expenses actually and reasonably incurred by them in connection with any
threatened, pending or completed legal action, proceeding or investigation
(other than actions brought by or in the right of the Company) to which any of
them was, is or is threatened to be made a party by reason of his or her status
as a director, officer or agent of the Company or his or her serving at the
request of the Company in any other capacity for or on behalf of the Company,
provided that (i) such person acted in good faith and in a manner at least not
opposed to the best interests of the Company, (ii) with respect to any criminal
proceedings, such person had no reasonable cause to believe his or her conduct
was unlawful, (iii) such person is not finally adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the Company,
unless the court views in light of the circumstances that the director or
executive officer is nevertheless entitled to indemnification, and (iv) the
indemnification does not relate to any liability arising under Section 16(b) of
the 1934 Act or the rules or regulations promulgated thereunder. With respect to
any action brought by or in the right of the Company, directors and executive
officers may also be indemnified, to the extent not prohibited by applicable
laws or as determined by a court of competent jurisdiction, against reasonable
costs and expenses incurred by them in connection with such action if they acted
in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the Company.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the 1933 Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Any restricted securities to be offered or resold pursuant to this
Registration Statement are exempt under Section 4(2) of the 1933 Act, as a
non-public offering of securities.
ITEM 8. EXHIBITS
EXHIBIT DESCRIPTION
4.1 Form of Certificate of Incorporation of the Registrant, as amended.
4.2 Form of Bylaws of the Registrant, as amended.
4.3 1997 Directors' Stock Option Plan.
5 Opinion of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (contained in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Richard A. Eisner & Company LLP.
24 Power of attorney (included on signature page).
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ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 1933 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to be believe it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on January 14, 1998.
N2K INC.
By: /s/ Lawrence L. Rosen
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Lawrence L. Rosen
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below under the heading "Signatures" constitutes and appoints Jonathan V.
Diamond and Bruce Johnson his true and lawful attorneys-in-fact and agents, each
acting alone, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all
amendments to this Registration Statement, including post-effective amendments,
and to file the same with all exhibits thereto, and all documents in connection
therewith, including, without limitation, any registration statement for the
same offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act of 1933, with the Securities and Exchange Commission,
granting unto attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, and hereby ratifies and confirms all that said
attorneys-in-fact and agents, each acting alone, or their substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 14th day of January, 1998.
Signature Title
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/s/ Lawrence L. Rosen Chairman of the Board, Chief Executive
- ----------------------------------- Officer and Director (Principal Executive
Lawrence L. Rosen Officer)
/s/ Jonathan V. Diamond Vice Chairman and Director
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Jonathan V. Diamond
/s/ Robert David Grusin Vice Chairman and Director
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Robert David Grusin
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/s/ James E. Coane President, Chief Operating Officer and
- ----------------------------------- Director
James E. Coane
/s/ Bruce Johnson Vice President, Secretary, Chief Financing
- ----------------------------------- Officer (Principal Accounting Officer and
Bruce Johnson Principal Financial Officer) and Director
/s/ Robert C. Harris, Jr. Director
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Robert C. Harris, Jr.
/s/ Susanne Harrison Director
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Susanne Harrison
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INDEX TO EXHIBITS
The following documents are filed as part of this Registration Statement.
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Exhibit Location
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4.1 Form of Certificate of Incorporation of the Incorporated by reference from Exhibit 3.1 to the
Registrant, as amended. Registrant's Registration Statement on Form S-1,
Registration Statement No. 333-33105, filed with
the Securities and Exchange Commission
("Commission") on August 7, 1997.
4.2 Form of Bylaws of the Registrant, as Incorporated by reference from Exhibit 3.2 to the
amended. Registrant's Registration Statement on Form S-1,
Registration Statement No. 333-33105, filed with
the Commission on August 7, 1997.
4.3 1997 Directors' Stock Option Plan of the Incorporated by reference from Exhibit 4.5 to the
Company. Registrant's Registration Statement on Form S-1,
Registration Statement No. 333-33105, filed with
the Commission on August 7, 1997.
5 Opinion of Dewey Ballantine LLP, re: Attached.
legality, including consent.
23.1 Consent of Dewey Ballantine LLP. Contained in Exhibit 5.
23.2 Consent of Arthur Andersen LLP. Attached
23.3 Consent of Richard A. Eisner & Company, LLP. Attached
24 Power of Attorney. Included on signature page.
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EXHIBIT 5
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019
January 14, 1998
N2K Inc.
55 Broad Street
26th Floor
New York, New York 10004
Gentlemen:
On or about January 14, 1998, N2K Inc. (the "Company") will file with the
Securities and Exchange Commission its Registration Statement ("Registration
Statement") on Form S-8. The Registration Statement covers 500,000 shares of
Common Stock, par value $.001 per share (the "Common Stock"), that have been or
may be issued or transferred by the Company upon the exercise of stock options
that have been or may be granted to directors of the Company and its
subsidiaries under the 1997 Directors' Stock Option Plan (the "Plan").
With respect to the Company and shares of its Common Stock, we are of the
opinion that:
A. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
B. The 500,000 shares of Common Stock referred to above:
(i) are duly authorized; and
(ii) will be validly issued and outstanding, fully paid and
nonassessable upon issuance or transfer pursuant to the due exercise of
stock options in accordance with the terms and subject to the conditions
of the Plan and the payment of the option price stated in such options.
In arriving at the foregoing opinion, we have examined corporate records,
plans, agreements and other documents of the Company.
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
DEWEY BALLANTINE LLP
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EXHIBIT 23.2
[Letterhead of Arthur Andersen]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To N2K Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement to our report dated October 16, 1997
included in N2K Inc.'s Prospectus, filed pursuant to Rule 424(b), dated October
17, 1997 (Registration Statement File No. 333-06603), and to all references to
our firm included in this registration statement.
ARTHUR ANDERSEN LLP
New York, New York
January 14, 1998
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EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 dated January 14, 1998 of our report dated January 31, 1996, with
respect to Note F, February 13, 1996 on our audit of the financial statements of
N2K Inc. as of December 31, 1995, and for the period beginning March 7, 1995
(date of inception) through December 31, 1995 which appears in the Form S-1
Registration Statement dated October 17, 1997 of N2K Inc.
RICHARD A. EISNER & COMPANY, LLP
New York, New York
January 14, 1998
